Annis v. AnnisAnnis v. Annis
— In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Westchester County (DiFede, J.H.O.), dated March 5, 1987, which, inter alia, directed a distributive award in her favor in the amount of only $46,733.50.
Ordered that the judgment is modified by deleting the third and fourth decretal paragraphs thereof; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing to determine which of the parties’ assets constitute marital property, and for a redistribution of those assets in accordance with the provisions of Domestic Relations Law § 236 (B) (1) (c); (5) (g).
Although this action was commenced in October 1981, and the trial commenced in November 1986, the court chose October 28, 1983 as the date of valuation of the stock portfolio held by the defendant, the major asset of the marriage. While there are no strict rules mandating the use of a particular valuation date in the consideration of marital assets and the
Domestic Relations Law § 236 (B) (1) (c) states that "marital property” includes "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held”. In the instant case there was testimony that the defendant husband cashed in two life insurance policies for a total of approximately $4,500 in 1981 and that he changed the beneficiary on a third life insurance policy from the plaintiff to a friend. Although these policies constituted marital property, not only did the court fail to make a valuation of that third policy, it also failed to make any distributive award of the three policies. This was error. Further error was committed when the court failed to adequately analyze to what extent certain bank accounts opened by the plaintiff in the names of herself and the children, her Technicon stock, and an individual retirement account she opened with the proceeds of her pension and profit-sharing plan from her previous employer, as well as various other rollover accounts, constituted marital property. The court also erred in treating a $32,000 certificate of deposit held by the defendant as a separate asset for distribution, since that amount was derived from the stock portfolio and had already been disposed of by the court’s distribution of the stock portfolio.
Although the court purportedly awarded the plaintiff a share of one of the defendant’s pension plans, it failed to make a valuation on a second pension plan in which he admitted participation, and that had been valued by the plaintiff’s expert. Despite the defendant’s hearsay statement, which was excluded from evidence, that the union had informed him that he was "disclaimed” from this second pension, we conclude that the court should have determined the defendant’s interest in the plan, set a value thereon, and
Domestic Relations Law § 236 (B) (5) (g) requires that: "[i]n any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel” (emphasis supplied). In the instant case, although the court alluded to some of the facts, it failed to adequately set forth in a clear and comprehensive manner the factors it considered in determining the respective rights of the parties in their separate or marital property or the reasons for its decision as required (see, Chasnov v Chasnov,
Although this court has the authority to make the necessary determinations (see, Majauskas v Majauskas,
We have examined the remaining contentions of the plaintiff and find them to be without merit. Thompson, J. P., Kunzeman, Spatt and Balletta, JJ., concur.